The role of enterprise within vicarious liability: courageous or unprincipled judicial reasoning

AuthorSive Ozer
Pages143-168
S.S.L.R. The role of enterprise risk within vicarious liability
143
Vol.2
The role of enterprise risk within vicarious liability:
courageous or unprincipled judicial reasoning?
Sive Ozer
Sometimes speculation can lead to ignorance and this dissertation attempts to
challenge the uncritically accepted assumptions about risk creation within the
law of vicarious liability. The most recent case law in this field is examined
and an inconsistent application of the doctrine is identified. This analysis
demonstrates the over-extension of vicarious liability and the confidence
placed upon the ‘fairness’ of the ‘enterprise risk’ reasoning to warrant such a
move.
It is argued that the judiciary, despite placing an unprecedented weight upon
the ‘enterprise risk’ reasoning, has failed to explore the theoretical weight that
is attached to risk creation. The willingness to connect the innocent plaintiff
with a defendant of means is understandable. However, if the courts are
willing to expand a doctrine that imposes liability on a blameless individual,
they must do so through engaging in a more sophisticated reasoning.
Introduction
‘A magical blueprint’
1
icarious liability is a legal responsibility imposed on an employer, who
may himself be blameless, for a tort committed by his employee in the
‘course of his employment’.2 The courts are left with a troublesome task
the choice is whether to impose the burden of damage on an innocent
employer as opposed to leaving them lie with the innocent claimant.3 This
difficulty arises from the probable ‘impecuniosity’4 of the actual tortfeasor. It
is possible to state that the recent developments in the law of vicarious liability
provide a ‘magical blueprint’ for promoting plaintiffs’ recovery,5 by targeting
the ‘deep-pockets’ of the employer. However, this was not always the case. If
we widen the lens, it is possible to see that this doctrine has been evolving
comfortably to suit the social and economic developments for centuries; ‘it has
its roots in medieval law and was refined in the Victorian era’.6
1 John G. Fleming, An Introduction to the Law of Torts (2nd edn, Clarendon Press 1986) 14.
2 Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215 [14].
3 Jaco bi v Griffiths [1999] 174 DLR 71 [45].
4 Claire McIvor, ‘The use and abuse of the doctrine of vicarious liability’ (2006) 35 CLWR 268, 274.
5 John G. Fleming, An Introduction to the Law of Torts (2nd edn, Clarendon Press 1986) 14.
6 David R. Wingfield, ‘Perish Vicarious Liability?’ in Jason W. Neyers, Erika Chamberlain and
Stephen G.A. Pitel (eds), Emerging Issues in Tort Law (Hart Publishing 2007) 394.
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[2012] Southampton Student Law Review
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Vol. 2
In the early medieval times the master was held responsible for all his
servant’s wrongs.
7 It was the prevailing economic growth in the Victorian era
that fostered the development of a new law of torts based firmly on the general
principle of ‘fault’.8 The axiom ‘no liability without fault’9 operated as a hidden
subsidy to industry. 10 By allowing industry to operate without excessive
burdens, and expecting its occasional casualties to shoulder the loss
themselves, as their own contribution to the general welfare, 11 the law
facilitated what was then viewed as ‘human progress’.12
However, these ‘individualistic notions’13 did not survive the aspirations of the
mid-twentieth-century man. The emergence of the Welfare State meant ‘ever-
mounting reliance on collective action’ and ‘increasing measure of social
welfare for the benefit of society’s casualties’.14 George Priest recognised that
‘modern tort law generates complicated legal and economic issues that would
have appeared bizarre to a lawyer dealing with defective products in the 1950s
whose practice was one of warranty interpretation and routine negligence’.15
These developments are of interest to the present enquiry as the changes in
the social policy are reflected directly in the law governing vicarious liability.
Of late, the law of vicarious liability has been subject to vigorous appraisal by
the courts.16 There has been an increased judicial willingness to intervene in
favour of innocent claimants. Indeed, Mr Justice MacDuff’s judgment, in the
recent decision of JGE v The English Province of Our Lady of Charity,17
epitomised this trend. He went as far as stating that vicarious liability is ‘a
doctrine designed for the sake of the claimant’. 18 Considering this, it is
perhaps unsurprising that this case paved the way for a remarkable extension
of the doctrine.
JGE v The English Province of Our Lady of Charity19
JGE has been attracting considerable attention as the High Court gave the ‘go
ahead’ to extending vicarious liability to non-employment relationships. This
preliminary decision stated that the diocesan bishop should be held
7 John G. Fleming, The Law of Torts (9th edn, LBC Information Services 1998) 409.
8 Carol Harlow, Und erstanding Tort Law (3rd edn, Thomson Reuters (Professional) UK Limited 2005)
11.
9 John G. Fleming, An Introduction to the Law of Torts (2nd edn, Clarendon Press 1986) 5.
10 Carol Harlow, Understa nding Tort Law (3rd edn, Thomson Reuters (Professional) UK Limited) 12.
11 John G. Fleming, An Introduction to the Law of Torts (2nd edn, Clarendon Press 1986) 4.
12 Ibid. 5.
13 David R. Wingfield, ‘Perish Vicarious Liability?’ in Jason W. Neyers, Erika Chamber lain and
Stephen G.A. Pitel (eds), Emerging Issues in Tort Law (Hart Publishing 2007) 397.
14 John G. Fleming, An Introduction to the Law of Torts (2nd edn, Clarendon Press 1986) 17.
15 George L. Priest, ‘The Invention of Enterprise Liability: A Critical History of the Intellectual
Foundations of Modern Tort Law’ (1985) 14 LS 461, 462.
16 Douglas Brodie, ‘Enterprise liability: justifying vicarious liability’ (2007) 27(3) OJLS 493, 508.
17 [2011] EWHC 2871, [2012] 1 All ER 723.
18 Ibid. [19].
19 JGE (n17).

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